Michelle Alexander says the criminal justice reform movement should shed its fixation with innocence. In her groundbreaking book, The New Jim Crow: Mass Incarceration in the Age of Colorblindness, Alexander suggests that reformers start focusing on normal defendants. Since most criminal defendants done the deed, that means going to bat for guilty people. Why would we want to do that?
Everything depends on the goal the reform movement is shooting for. If the goal is to protect due process in the legal system we are wise to focus on innocent defendants. No one (well, almost no one) wants to send innocent people to prison. We can all imagine the horror of being wrongfully accused and convicted (well, nearly all of us can).
What would it take to fully protect the due process rights of ordinary Americans? Over the past forty years, a punitive-retributive consensus has created the machinery of mass incarceration: the war on drugs, broken-window policing, zero tolerance, mandatory minimum sentences, three strikes laws, a host of new felonies and massive new penalties for crimes of every description. So long as this punitive-retributive consensus controls the public mood it is hard to envision real reform.
But suppose, just for the sake of argument, we suddenly decided to lower the chances of wrongful conviction. What would change?
The mass incarceration machinery demands millions of defendants. According to Amy Bach’s Ordinary Justice: How America Holds Court, a quarter of the adult population of these United States has a criminal record. The massive wave of defendants has swamped the court system. We can’t find enough courtrooms, judges, prosecutors, defense attorneys and court reporters to handle the resulting legal work. Many public defenders have case loads three times as large as they were thirty years ago, and the same could be said for your average judge and prosecutor.
The system copes, in part, by cutting back on jury trials. Between 95 and 97% of cases are settled via plea bargain. It hasn’t been pretty, but there has been no alternative.
But back to my question: what if we wanted to protect due process without addressing the number of criminal cases coming to bar? We would triple the number of courtrooms, judges, prosecutors, police investigators and defense attorneys. There would be no other solution. Police investigators would have the luxury of carefully examining the facts before kicking a case up the pipeline. Prosecutors could research several theories of the case before moving forward. Defense attorneys would have the time and resources to gather affidavits from potential witnesses, talk to their clients (a novel concept), and probe the weaknesses in the state’s case before advocating a plea agreement. Judge’s would be less likely to coerce defendants into making a deal.
In short, most of the structural issues leading to wrongful conviction would be minimized. Innocent people would still be convicted, but not nearly as many.
But this reform tsunami wouldn’t affect the institutional dynamics of mass incarceration. We would still be locking up 2.4 million people; 7.3 million people would still be “in the system” (jail, prison, probation or parole); we would still be making it tough for convicted felons to get a job, subsidized rent or a Pell grant; and the chances of finding educational and vocational alternatives to the streets would remain slight.
But what if the goal of the movement is to end mass incarceration? In that case, we need to explain to Middle America how ordinary people get sucked into the system and why few of them are able to get out. That means focusing on the normal defendant and the normal case.
It also means dramatizing the rigors of the post-release world.
Is innocence overrated? Not really. We can’t have people doing the time when they didn’t do the crime. The systemic roots of wrongful incarceration must be addressed. But we dare not stop there.
It is becoming increasingly difficult to demonstrate actual innocence to the satisfaction of the legal establishment. The gusher of DNA exoneration cases we have witnessed in recent years is slowly ebbing to a trickle. There simply isn’t that much cold case DNA left to test. Contemporary DNA testing can confirm guilt or innocence far more decisively than was once possible. Once the backlog of cold cases has been re-examined we will need to find new ways of establishing innocence.
The only alternative to DNA evidence is a convincing confession from the actual perpetrator. This occasionally happens in rape cases, but only after the statute of limitations has run. It rarely happens in homicide cases where a confession of guilt is tantamount to a guilty plea. Moreover, to be effective, a confession must be convincing. The person signing the affidavit must display a detailed knowledge of the crime including details that have not been released to the public. As the Troy Davis case demonstrates, recanting eye witnesses are rarely enough to vacate a guilty verdict.
As a consequence, criminal justice reformers don’t have the luxury of focusing primarily on demonstrably innocent defendants. These cases have impacted the public mood in a big way. It is debatable, however, that exoneration cases could ever produce a dramatic shift from a punitive-retributive consensus to what Friends of Justice calls a common peace consensus. A dramatic exoneration story reinforces the public desire to get it right. These cases have produced some incremental changes and will produce more.
But the Age of Innocence is drawing to a close.
In the meantime, the mass incarceration machinery grinds on. Take Texas as an example. Reverberations from the ill-famed Tulia drug sting, the Hearne debacle and the Dallas “sheet rock scandal” are still being felt across the state. Nonetheless, “only” 152,000 Texans were in prison in 2000 when Friends of Justice and there are currently 162,000. The rate of growth has slowed, but the harsh reality remains.
Legal reforms are needed, but they play out within a system shaped by the punitive-retributive consensus. Incremental reform is possible; but the mass incarceration express rolls on.
Nothing short of sweeping legislative reform can end mass incarceration, and that means converting hearts and minds. The current system is a rough-and-ready reflection of the public will. We have the system we desire. So long as a punitive-retributive consensus reigns in America, politicians will dream up new crimes and stiffer penalties. Mercifully, public malice has cooled slightly in recent years, but that is cold comfort for the 2.4 million citizens currently in prison, the 7.3 million people presently in the system or the 47 million Americans with a criminal record.
Here’s the real problem: most criminal justice reformers (myself included) haven’t transcended the punitive-retributive consensus. We don’t believe that sweeping change is possible. We have become jaded, cynical and fatalistic, content to snatch a few isolated brands from the burning, but unwilling to launch a frontal assault against the bulwarks of mass incarceration.
That needs to change.
Alan Bean, Friends of Justice